283 U.S.

753
51 S.Ct. 615
75 L.Ed. 1389

HALBERT et al.
v.
UNITED STATES, and thirteen other cases.
Nos. 141-154.
Argued March 11, 12, 1931.
Decided June 1, 1931.

[Syllabus from pages 753-755 intentionally omitted]

Messrs. Webster Ballinger, of Washington, D. C., and Overton G. Ellis, of
Tacoma, Wash., for petitioners.
Mr. Seth W. Richardson, Asst. Atty. Gen., for the United States.
Mr. Justice VAN DEVANTER delivered the opinion of the Court.

These suits were brought in the District Court for the Western District of
Washington to establish and enforce asserted rights to allotments, each of 80
acres, in the Quinaielt Indian Reservation in the southwestern part of that State.
Authority for bringing the suits is found in the statute providing that any person
who is 'in whole or in part of Indian blood or descent' and claims to be entitled
to an allotment of land under any law of Congress may prosecute a suit against
the United States to determine and give effect to such right. 1 The suits were
heard together in the District Court, where decrees were given for the plaintiffs,
and again in the Circuit Court of Appeals, where those decrees were reversed.2
The cases are here on certiorari. 282 U. S. 818, 51 S. Ct. 23, 75 L. Ed. .

The plaintiffs are all of Indian blood and descent, but none is a full-blood
Indian. Some are members of the Chehalis, Chinook and Cowlitz Tribes, and
the question is presented whether these tribes are among those whose members
are entitled to allotments from lands within the Quinaielt Reservation. Many do
not personally reside on the reservation, and we are asked to decide whether
this defeats their claims. Some are the issue, either children or grandchildren, of

a marriage between an Indian woman and a white man, and whether this is an
obstacle to allowing their claims is a further question.
3

In 1855 the Quinaielt, Quillehute (also called Quileute), Chehalis, Chinook and
Cowlitz Indians were neighboring tribes in the southwesterly section of what is
now the State of Washington. They were all known as 'fisheating Indians' and
lived in small villages adjacent to the Pacific Coast and the lower reaches of the
Columbia River. The Quits and Ozettes were also fish-eating tribes living in
coast villages a little north of the others, the Ozettes being farther north than
the Quits.

During the early part of 1855 negotiations were had between a representative of
the United States and representatives of the Quinaielt, Quillehute, Chehalis,
Chinook, Cowlitz and Quit Tribes looking towards a cession by these tribes of
much territory and their consolidation within a single reservation. These
negotiations failed of their full purpose, but resulted in a treaty between the
United States and the Quinaielts and Quillehutes which was signed on July 1,
1855, and January 25, 1856.3 By this treaty the Quinaielts and Quillehutes
ceded a large district to the United States, and the latter engaged to reserve for
their use and occupancy a tract 'sufficient for their wants,' to which when
established they were to remove. There were also provisions in the treaty
securing to the Indians the right of taking fish 'at all usual and accustomed
grounds and stations,' in common with all citizens of that section, and of
erecting temporary houses to be used in that connection; authorizing the
President, at his discretion, to survey the whole or any part of the reserved
lands and assign the same to such individuals or families 'as are willing to avail
themselves of the privilege and will locate on the same as a permanent home';
and consenting that the President might 'consolidate' the Quinaielts and
Quillehutes and 'other friendly tribes,' whenever in his opinion the public
interest and the welfare of the Indians would be promoted b it.

Under the treaty a reservation of about 10,000 acres at the mouth of the
Quinaielt River was provisionally selected and its boundaries surveyed. Some
years later the local superintendent reported that the reservation, by reason of
being small and containing but a small amount of agricultural and pasture
lands, had proved unattractive to the Indians; that the Chehalis, Chinook and
other coastal tribes in southwestern Washington, like the Quinaielts and
Quillehutes, who were parties to the treaty, were all 'emphatically fish-eaters,'
drawing their subsistence almost wholly from the water, and that all of these
fish-eating tribes should be collected on a single reservation, including suitable
fisheries. To that end he recommended that the existing reservation be greatly
enlarged and designated the territory which he believed should be included in it.

This recommendation led to an order of November 4, 1873, by the President,

the material parts of which are as follows:4
6

'In accordance with the provisions of the treaty with the Quinaielt and
Quillehute Indians, concluded July 1, 1855, and January 25, 1856, and to
provide for other Indians in that locality, it is hereby ordered that the following
tract of country in Washington Territory * * * be withdrawn from sale and set
apart for the use of the Quinaielt, Quillehute, Hoh, Quit, and other tribes of
fish-eating Indians on the Pacific Coast. * * *' This enlarged reservation
contained about 200,000 acres and included the prior provisional reservation of
10,000 acres.

By an Act of March 4, 1911,5 Congress directed the Secretary of the Interior to

make allotments on the Quinaielt Reservation under the provisions of the
allotment laws 'to all members of the Hoh, Quileute, Ozette or other tribes of
Indians in Washington who are affiliated with the Quinaielt and Quileute Tribes
in the treaty (before named) and who may elect to take allotments on the
Quinaielt Reservation rather than on the reservations set aside for these tribes.'
This direction was followed by a proviso declaring, 'The allotments authorized
herein shall be made from the surplus lands of the Quinaielt Reservation after
the allotments to the Indians thereon have been completed.' The reference to
'other reservations' may be sufficiently explained by stating that some small
reservations6 had been set aside theretofore for particular villages of the Hoh,
Quileute, Ozette, Quit, Chehalis and other fish-eating tribes, but that these
reservations were in some instances limited to 640 acres and were in no
instance large enough to provide allotments to more than a small fraction of the
Indians thereon.

When the bill which became the Act of March 4, 1911, was introduced in
Congress it contained a direction that allotments be made to 'all members of the
Hoh, Quileute and Ozette tribes of Indians in Washington who may elect,' etc.,
and said nothing about other tribes; but in the course of its passage this
provision was amended so as to read: 'to all members of the Hoh, Quileute,7
Ozette or other tribes of Indians in Washington who are affiliated with the
Quinaielt and Quileute7 Tribes in the treaty (before named) and who may elect,'
etc. This shows that Congress intended to include tribes not included in the
original provision; and it shows further that they were to be tribes having, like
the Hoh and Ozette tribes, some affiliation with the Quinaielt and Quileute
Tribes 'in the treaty.' Probably 'in' was used in the sense of 'under' or 'through.'
Strictly speaking there was no affiliation in the treaty. But the treaty did contain
a provision under which affiliation might be brought about. It authorized the
President to consolidate the Quinaielt and Quileute Tribes with other friendly

tribes. Under this provision he made the orer e stablishing the enlarged
reservation for the use, not only of the Quinaielt and Quileute Tribes, but also
of the Hoh, Quit and other coastal tribes of fish-eating Indians 'in that locality,'
evidently meaning in that section of the Territory of Washington.
9

That was a step towards consolidation. Other steps followed, one being that in
1905 the Indian Bureau began making allotments to members of all of these
tribes. This work was carried on under the treaty, the executive order and the
general allotment law, and it had progressed prior to the Act of 1911 to the
point where over 750 allotments had been completed, more than half of which
were to members of the various fish-eating tribes in that section other than the
Quinaielt and Quillehute. It therefore was altogether appropriate at that time to
speak of these other tribes as affiliated with the Quinaielt and Quillehute under
the treaty.

10

The action of the administrative officers under the Act of 1911 has been almost
uniformly in accord with the view just stated. In 1913 a bill was introduced in
Congress to amend the Act of 1911 by specifically including the Cowlitz and
some other fish-eating tribes in southwestern Washington not before named in
the act; and in a letter responding to an inquiry about the need for the bill the
Indian Bureau said: 'It is believed that the Indians referred to in the pending bill
may be allotted on the Quinaielt Reservation and that further legislation is
unnecessary.' The Solicitor for the Department of the Interior so construed the
treaty, executive order and Act of 1911 in an opinion rendered to the Secretary
of the Interior, and that opinion was accepted as a guide in making further
allotments. Possibly it was not followed when the administrative officers were
dealing with the applications of the plaintiffs in these suits. As to that we are
not advised. The record contains a stipulation showing that the applications
were rejected but not disclosing the grounds of that ruling.

11

Our conclusion on the first question presented is that the Chehalis, Chinook and
Cowlitz Tribes are among those whose members are entitled to take allotments
within the Quinaielt Reservation, if without allotments elsewhere. The Circuit
Court of Appeals held otherwise in some of the suits and in this we think it
erred.

12

The Act of 1911 does not purport to make the right to an allotment dependent
on a personal residence on the reservation. It is a special act relating only to this
reservation. The land within the reservation is generally covered with a heavy
growth of timber and is difficult of clearing. As a rule the Indians are poor and
would be without means of supporting themselves while attempting to clear the
land. The treaty secures to them the right of taking fish at all usual and

accustomed grounds. Most of them are fishermen, but a few find employment
in lumber camps. Most of them have for many years resided in small villages
outside the reservation. Some of the villages are within small reservations made
by executive orders; but the majority of the Indians have always lived outside
any reservation. When the Act of 1911 was passed more than 750 had been
given allotments. Of these not more than 1 out of 5 had over resided on the
reservation. It is probable that Congress was advised of the situation of these
Indians when the special act was passed and carefully refrained from placing
anything in the act indicative of a purpose to make personal residence on the
reservation an element of the right to an allotment.
13

These Indians are not the usual reservation Indians. They never were placed on
the reservation or required to live within its limits. Their situation is quite like
that of the Walla Walla Tribe which at one time engaged the attention of this
Court.8 A special act directed the allotment of the lands of that tribe. In its title
the act was described as providing for allotments to the Indians 'residing upon'
he r eservation, and in its first sentence there was a direction that allotments be
made to members of the tribe 'residing upon' the reservation. After stating the
situation to which the act was to be applied this Court said:

14

'When such a large percentage of allottees upon this reservation resided, as did
the appellee, elsewhere than actually upon the reservation at the date of the
passage of the act of 1885, it cannot be that the act passed was intended to limit
the right to an allotment to those actually residing on the reservation, to the
exclusion of a majority of the members of the different bands or tribes. The fact
of such nonresidence is presumed to have been known by Congress, and the act
should be construed with reference to that knowledge. * * * The purpose of the
act would fall very far short of accomplishment were the allotments confined
exclusively to those actually residing within the limits of the reservation.'

15

While the Act of 1911 provides that the allotments shall be made under the
'allotment laws of the United States,' we think this provision hardly could have
been intended to make any provision in those laws requiring residence
applicable to the situation we have described. The Act of 1911 is not merely
silent respecting residence; it directs that allotments be made to 'all members' of
the tribes designated who elect to take allotments upon the Quinaielt
Reservation rather than on 'the reservations set aside for these tribes.' These
words are indicative of a purpose to exclude a residential requirement.

16

The record shows that the officers administering the act did not confine the
allotments to Indians actually residing on this reservation or one of the small
ones, and also that they informed applicants that residence was not required.

Counsel for the government admit that such has been the practice, and they set
forth in their brief a letter of June 13, 1930, from the Secretary of the Interior to
the Attorney General reading as follows:
17

'The matter of residence upon the reservation was not insisted upon as a
prerequisite to allotment, either before or after the passage of the Act of March
4, 1911 (36 Stat. L., 1345) so far as the Quinaielt and other Indians mentioned
in the Act or those who were affiliated with the Quinaielt in the Treaty of 1855
and 1856 are concerned. A number of allotments have been made to those who
have resided away from the reservation.'

18

These considerations require, as we think, that personal residence on the

reservation be held not essential under the Act of 1911 to the right to an
allotment. The Circuit Court of Appeals took and applied the opposite view and
in this we think it erred.

19

We come then to the question respecting the status of the issue, either children
or grandchildren, of a marriage between an Indian woman and a white man.

20

The rule is general that, in the absence of provision to the contrary, the right of
individual Indians to share in tribal property, whether lands or funds, depends
on tribal membership and is terminated when the membership is ended.9 Under
the operation of this rule an Indian woman loses her tribal membership where
she marries a white man, separates from the tribe and lives with him among
white people. But it is the separation from the tribe rather than the marriage
which puts an end to the membership. The marriage usually serves to explain
the separation and illustrate that it is intentional and permanent. But where the
woman remains in the tribal environment and continues the tribal affiliation the
membership is not affected. If the husband be a citizen of the United States, the
woman by the marriage becomes also a citizen,10 but there is no incompatibility
between tribal membership and United States citizenship.

21

The children of a marriage between an Indian woman and a white man usually
take the status of the father; but if the wife retains her tribal membership and
the children are born in the tribal environment and these reared by her, with the
husband failing to discharge his duties to them, they take the status of the
mother.

22

Whether grandchildren of such a marriage have tribal membership or otherwise

depends on the status of the father or mother as the case may be, and not on that
of a grandparent.

23

As to marriages occurring before June 7, 1897 (as the marriages here did),
between a white man and an Indian woman, who was Indian by blood rather
than by adoption-and who on June 7, 1897, or at the time of her death, was
recognized by the tribe-the children have the same right to share in the division
or distribution of the property of the tribe of the mother as any other member of
the tribe, but this is in virtue of the Act of June 7, 1897.11

24

So far as can be determined from the record the District Court rightly applied
the rules stated in this opinion. The record does not purport to contain, and
evidently does not contain, all the evidence that was produced on the hearing.
The statement of it was prepared by counsel for the Government and the
certificate is that the statement contains 'all the evidence essential to the
decision of the questions presented by the appeal of the defendant.' The
assignment of errors, which was then before the District Court, does not
challenge the decision of any question of fact, but only rulings on questions of
law. It is thus rather plain that the statement of evidence contains only so much
of the evidence as was deemed essential to the decision of the latter. We now
are asked to consider questions not raised by the assignment of errors and which
cannot be properly decided without appropriate assurance that the record
contains all the evidence that is material to their decision. We must decline to
consider them.

25

Decrees of Circuit Court of Appeals reversed.

26

Decrees of District Court affirmed.

Act Feb. 6, 1901, c. 217, 31 Stat. 700 (25 USCA 345, 346).

U. .s. v. Halbert, 38 F.(2d) 795; U. S. v. Provoe, 38 F.(2d) 799; U. S. v.

Walkowsky, 38 F.(2d) 805; U. S. v. Rolfson, 38 F.(2d) 806.

12 Stat. 971.

Executive Orders Relating to Indian Reservations (1912) p. 206.

Chapter 246, 36 Stat. 1345.

Executive Orders Relating to Indian Reservations (1912) pp. 172-175, 195,

200, 205, 206 (Shoalwater).

Through some oversight the amendment placed the Quileute Tribe on both

sides of the affiliation.

8

Hy-Yu-Tse-Mil-Kin v. Smith, 194 U. S. 401, 408-412, 24 S. Ct. 676, 680, 48 L.

Ed. 1039. And see Bonifer v. Smith (C. C. A.) 166 F. 846.

Cherokee Nation v. Hitchcock, 187 U. S. 294, 307, 23 S. Ct. 115, 47 L. Ed.

183; Gritts v. Fisher, 224 U. S. 640, 642, 32S. C t. 580, 56 L. Ed. 928;
Sizemore v. Brady, 235 U. S. 441, 446, 35 S. Ct. 135, 59 L. Ed. 308; La Roque
v. United States, 239 U. S. 62, 66, 36 S. Ct. 22, 60 L. Ed. 147; Oakes v. United
States (C. C. A.) 172 F. 304, 307.

10

Act Aug. 9, 1888, c. 818, 25 Stat. 392 (25 USCA 181-183).

11

Chapter 3, 1, 30 Stat. 90 (25 USCA 184). Other modifications of the

general rule are found in the Acts of March 3, 1875, c. 131, 15, 18 Stat.
420(43 USCA 189); February 8, 1887, c. 119, 6, 24 Stat. 390 (25 USCA
349); August 9, 1888, supra, 2 (25 USCA 182); May 8, 1906, c. 2348, 34
Stat. 182. And see Act June 2, 1924, c. 233, 43 Stat. 253.